State Consumer Disputes Redressal Commission
M/S Abel Construction & 3 Others vs Martinho Francisco Noronha on 27 April, 2015
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BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
PANAJI - GOA
FA No. 94/2014
With
FA No. 96/2014
1.M/s. Abel Constructions,
Represented by its sole Proprietress,
Mrs.Zita D'Souza,
r/o Mar-bel Apartments, Murida,
Fatorda, Margao, Goa.
2.Shri Sidney D'Souza,
r/o Mar-bel Apartments, Murida,
Fatorda, Margao, Goa.
3.Smt. Maria Gracias e Fernandes,
r/o Mar-bel Apartments, Murida,
Fatorda, Margao, Goa.
4.ShriBelarmino Peter Fernandes
r/o Mar-bel Apartments, Murida,
Fatorda, Margao, Goa. ... Appellants/Respondents/OPs
v/s
Mrs. Eliza Estebeiro
r/o H. No.287,
Macazana, Zoddim,
P.O. Curtorim, Salcette, Goa ... Respondent/Appellant/Compl.
2
FA No. 92/2014
With
FA No. 97/2014
1.M/s. Abel Constructions,
Represented by its sole Proprietress,
Mrs.Zita D'Souza,
r/o Mar-bel Apartments, Murida,
Fatorda, Margao, Goa.
2.Shri Sidney D'Souza,
r/o Mar-bel Apartments, Murida,
Fatorda, Margao, Goa.
3.Smt. Maria Gracias e Fernandes,
r/o Mar-bel Apartments, Murida,
Fatorda, Margao, Goa.
4.ShriBelarmino Peter Fernandes
r/o Mar-bel Apartments, Murida,
Fatorda, Margao, Goa. ... Appellants/Respondents/OPs
v/s
Mr. Martinho Francisco Noronha,
r/o Flat No. S-2, (Flat No.4),
Mar-bel Apartments, Murida,
Fatorda, Margao, Goa ...Respondent/Appellant/Complt.
FA No. 93/2014
With
FA No. 98/2014
1.M/s. Abel Constructions,
represented by its sole Proprietress,
Mrs.Zita D'Souza,
r/o Mar-bel Apartments, Murida,
Fatorda, Margao, Goa.
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2.Shri Sidney D'Souza,
r/o Mar-bel Apartments, Murida,
Fatorda, Margao, Goa.
3.Smt. Maria Gracias e Fernandes,
r/o Mar-bel Apartments, Murida,
Fatorda, Margao, Goa.
4.Shri. Belarmino Peter Fernandes
r/o Mar-bel Apartments, Murida,
Fatorda, Margao, Goa. ... Appellants/Respondents
v/s
Mrs. Dumelina John
Married, major in age,
r/o Flat No.S-1, Mar-bel Apartments,
Murida, Agalli,
Fatorda, Margao, Goa ... Respondent/Appellant
Appellant/s - Complainant/s are represented by Adv. Shri. S. K.
Naik
Respondent/s- OPsare represented by Adv. Shri. N. G. Kamat
Coram: Shri Justice N.A. Britto, President
Shri JagdishPrabhudesai, Member
Dated: 27/04/2015
ORDER
[Per Shri Justice N.A. Britto, President] These appeals and cross appeals can be conveniently disposed off by this common order. They arise from C.C. Nos. 65/2006, 67/2006 and 68/2006, and, are directed against orders passed therein dated 30/09/2014 by the South Goa District Forum at Margao.
42. Some facts are required to be stated to dispose off these appeals/cross appeals and for that the parties to these appeals are being referred to in the names as they appear in the cause title of the respective complaints.
3. The OPs (i.e. Maria Fernandes) as Vendors purchased two plots of land. The first plot admeasuring 324 sq. mts. was purchased by deed dated 3/11/1995 and the second plot admeasuring 282 sq. mts. was purchased by deed dated 3/04/1996. Both plots were of the same property surveyed under Chalta No. 9 of the P.T. Sheet No.59 of Margao City Survey and were amalgamated. The OPs constructed thereon a building to be known as MAR-BEL Apartments consisting of two flats on the first floor and two flats on the second floor and 4 shops and 2 garages on the ground floor, under Margao Municipal Council permission dated 10/10/1996. The OPs obtained from Margao Municipal Council occupancy certificate for the 4 shops and 2 garages on or about 8/09/1998 while the occupancy certificate for the two flats on the first and second floors came to be obtained on or about 1/12/1999.
4. The Complainant Mrs. Eliza P. Estebeiro (C.C. No.68/2006) entered into an agreement dated 20/02/1998 with the OPs, styled as an agreement for the sale, of flat F-1 having a super plinth area of 95.37 sq. mts. The agreement stipulated that the construction of the flat and the building would be in accordance with the plan annexed thereto. The agreement also stipulated that after taking possession, the Complainant would not be entitled to raise any claim against the OPs in respect of any item of work alleging not to have been carried out as per specifications or that any additional items of work as requested within the amounts paid thereof have not been done.
55. The Complainant Mrs. Dumelina John (C.C. No.65/2006) entered into an agreement dated 17/08/2000 with the OPs, styled as an agreement for sale, of flat S-1 having a built up area of 95.37 sq. mts. inclusive of 18.18 sq.mts. of open space located on the second floor of the said building. The agreement stipulated that the construction of the flat and also of the said building was done in accordance with the approved plans and by adhering to the conditions of the construction licence obtained from Margao Municipal Council. The agreement also stipulated that once the possession of the flat was given to the Complainant, the Complainant would be liable to bear the expenses for the period after the date of taking possession which included the Municipal house tax, etc. The agreement also provided that if the co-operative housing society or other legal entity of the various purchasers of the premises in the said building is not formed within a reasonable time, the OPs would, at the request of the Complainant, execute a deed of sale in favour of the Complainant or the person nominated by the Complainant or unto the Complainant's nominee the right and title of the said flat along with the proportionate undivided share in the said property.
6. The Complainant Shri Martinho K. Noronha (C.C. No.67/2006) entered into an agreement dated 06/05/1999 with the OPs, styled as an agreement for the sale of flat S-2 having a super plinth area of 92 sq. mts. The agreement stipulated that the construction of the said flat and the said building would be in accordance with the plan annexed thereto and in accordance with the specifications mentioned thereon. The agreement stipulated that the OPs would sign all documents like sale deed to pass title of the flat to the Complainant. The agreement also provided that in case the OPs cannot give the title of the said flat to the Complainant by way of sale deed, then the OPs would form co-operative housing 6 society. The society would be formed by the OPs within a period of one year from the date of possession of the said flat by the purchaser.
7. The flat F2 (below the flat S-2) appears to be in the occupation of the vendors/OPs though they do not reside in the same.
8. The Complainant/s came to be put in possession of their respective flats on or about 3/02/2000 and thereafter there appears to have been a deafening silence between the parties, atleast until August, 2006. Both the parties have failed to inform us that the Complainant Eliza also owns shop No.3, besides Flat No.1.
9. The OPs thereafter have also purchased another plot of land under Chalta No. 26, P.T. Sheet No.58 on the eastern side of the two plots under Chalta No.9 of P.T. Sheet No.59 and have put up a building thereon, consisting of 15 flats and 9 shops after amalgamating this plot with the two plots purchased earlier and surveyed under chalta no.9 of P.T. sheet no.59. This building was still under construction in the year 2006 or thereabout when the consumer complaints by present Complainants came to be filed on or about 1/11/2006. The second building with 15 flats and 9 shops appear to have been named by the OPs as `MAR-BEL' Apartments Phase II.
10. The complaints were filed for various reliefs by the Complainants but prior to that the Complainants sent notices to the OPs in August '06 which was replied to by the OPs on 4/09/2006 informing the Complainants that the process for formation of the housing society had commenced and that they would be approaching the Complainants for their signatures.
711. The Complainants then sent a legal notice dated 16/09/2006 to the OPs stating that they had approached the OPs for the formation of a housing society which demand the OPs agreed but failed to comply despite repeated requests. Complainants also stated that the OPs had started another construction in the year 2005 of a residential- cum-commercial building and that they were not agreeable to the verbal proposal from the OPs for the formation of a co-operative housing society for the buildings on both the plots as there was no such terms or conditions in the individual agreements for sale executed by the Complainants in respect of the flats purchased by them as their building was constructed and completed in the year 1999-2000 on a property that was in no way a part of the property where the new construction was coming up and that the OPs had maliciously delayed the execution of the sale deed or formation of a housing society with ulterior motives. This legal notice was replied, by reply dated 26/09/2006, sent through advocate.
12. The operative part of the final order of the Lr. District Forum reads as follows:
"The OPs are directed to execute deed of sale for the housing co- operative society in respect of MAR-BEL Apartments constructed on two amalgamated plots i.e. Plot No.16 admeasuring 324 sq. mts. under chalta no.9 of P.T. sheet no.59. the Ops are further directed to shift the toilet to its original location and directed to provide parking space as required and shown in the report of Mr. Shridhar Kamat. The OPs are directed to carry out water proofing to the building so as to stop the leakage and seepage of the water. The OPs are also directed to pay Rs.1,00,000/- (Rupees one lakh only) as compensation and Rs.10,000/- (Rupees ten thousand only) as costs to the Complainant."8
13. We would take up first, the appeals filed by the Complainants. We would like to go by the written agreements between the parties and other material on record.
14. The only grievance made on behalf of the Complainants by their lr. advocate Shri. S. K. Naik is regarding execution of the sale deed. Lr. advocate submits that there is no Society formed till date and as such there is no question of execution of the sale deed in favour of a co-operative housing society, as ordered by the Lr. District Forum. Lr. advocate would submit that the OPs have already executed a sale deed dated 19/03/2013 in favour of the purchaser of a shop identified as shop no.2 on the ground floor of the said building with undivided right to the land which means that there is now no possibility of formation of a co-operative housing society. The lr. advocate would also submit referring to Section 6 of the Goa Co-operative Societies Act, 2001 that there is no requisite number of flat holders for formation of a co-operative housing society, the minimum requirement being of five members and as such there is no substance in the defence of the OPs that no co-operative housing society could be formed for want of cooperation from the Complainants.
15. Section 6 of the Goa Co-operative Societies Act, 2001 reads as follows:
"6. Conditions of registration - (1) no society, other than the Federal Society, shall be registered under this Act unless it consists of atleast 10 persons (each of such persons being a member of different family) who are qualified to be members under this Act and who reside or carry on business or profession in the area of the operation of the Society:9
Provided that a co-operative housing society consisting of atleast 5 such persons who are residing or intend to reside in the area of operation of the Society may be registered under this Act. "
16. Section 2(13) of the said Act defines Co-operative housing society to mean a Society as defined in Section 102 of this Act, and, Section 102 (e) defines Co-operative Housing Society to man a Society
(i) registered or deemed to be registered as a co-operative housing society under any law relating to co-operative societies in force in the State of Goa.
(ii) the principal object of which is to provide its members open plots, dwelling units or commercial units (whether in a multi-storeyed building or otherwise) and in case where open plots or dwelling units are already acquired, to provide its members common amenities and services including services relating to the arrangement of finances facilitating construction of dwelling units in order to solve their needs of dwelling units through mutual aid in accordance with the co- operative principles, and includes a co-ownership housing society, co-partnership housing society, co- operative housing maintenance society, and any other co-operative society of like nature and purpose;
17. On the other hand, Shri. N.G. Kamat, the lr. advocate of the OPs, would submit that the complainants were given possession of the flats in the year 2000 but they filed the complaints in the year 2006 which complaints not having been filed within two years as required by Section 24A of the C.P. Act, 1986, are clearly time barred and as such there was no question of any relief being granted to any of the complainants. Lr. advocate would further submit, in tune 10 with the plea taken by the OPs, in the written version, that it was the intention of the OPs that a Co-operative housing society would be formed for the entire project when completed and that the second building was just completed in the year 2006 i.e. at the time of filing the written version, and the complainants were issued requisite forms to be filled in for the formation of the society and payment to be made of Rs. 5000/- towards the fees which were not paid by any of the complainants.
18. We are unimpressed with the submissions made by the Lr. advocates of both the parties for reasons which follow.
19. The plea of limitation was not taken by the OPs in their written version and has been taken for the first time in these appeals. Admittedly, no co-operative housing society has been formed by the OPs within a period of one year as represented to the complainant Mr. Martinho Francisco Noronha in his agreement for sale dated 6/5/99 nor the same has been formed within a reasonable time, as represented to the complainant Mrs. Dumelina John in her agreement for sale dated 17/8/2000. In fact nothing has been placed on record by the OPs in writing to substantiate their plea that a Co- operative Housing Society was to be formed in their second project MAR-BEL Apartments, Phase II in as much as the OPs have also not placed on record any communication sent to the complainants requesting for payment of fees.
20. Admittedly, these are cases where possession has been handed over to the complainants but no sale deeds have been executed in their favour, and, therefore these would be cases of continuous or recurring causes of action. In MA(CD) No. 7/11 filed by Dr. JatinIshwarbhai Patel &anr., this State Commission by order dated 15/02/13 has held as follows:
11"Since no possession has been handed over to the Complainants of the apartments booked by them on 13/12/2006 although the Complainants claim that they have paid the entire amount due to the OPs, nor a sale deed executed, these would be cases of recurring cause of action. In other words, the causes of action would continue till such time the possession is handed over to the Complainants and sale deed is executed. In this context we may refer to Meerut Development Authority, 2012 (4) CPR 220, wherein the National Commission followed the view expressed by the Apex Court in Meerut Development Authority vs. M. K. Gupta, stating as follows:
"In our view the complaint filed by the respondent who had patiently waited for 27 years with the hope that he will get the plot was rightly not dismissed by the District Forum as barred by limitation because he had a recurring cause of filing a complaint in the matter of non-delivery of possession of the plot."(emphasis supplied)
21. The submission as regard limitation, therefore, has got to be rejected,as till the filing of the complaints, or even today no sale deed has been executed by the OPs in favour of the complainants.
22. The common legal notice dated 16/09/06 sent by the complainants to the OPs says it all, and we accept the stand taken by the complainants in the said notice. In the said notice the complainants told the OPs that they (the OPs) had started another construction in the year 2005 of a residential-cum-commercial building and that they were not agreeable to the verbal proposal from the OPs for the formation of a Co-operative Housing Society for the buildings on both the plots as that was not the term or condition in the individual agreements for sale executed by the complainants in respect of the flats purchased by them as their 12 building was constructed and completed in the year 1999-2000 on a property that was in no way a part of the property wherein their new construction was coming up and that the OPs had maliciously delayed the execution of the sale deeds or formation of the society with ulterior motives.
23. As stated, in our view, the complainants were fully justified in the said stand taken by them in the said notice dated 16/09/06. However, we find that the complainants have gone wrong in their math, when on their behalf, their advocate has stated that formation of a Co-operative housing society is not possible because five members are not available to form the same. The complainants are three in number. Mrs. Zita D'Souza of the OPs is another occupier of the building. Ramdas Prabhugaonkar, owner of shop No. 4, could have been the 5th member and Vajaram Choudhary owner of shop No. 2, could have been the 6th member. Therefore, it is obvious that if the OPs really wanted to form a Co-operative Housing Society, there was no legal impediment to form the same.
24. Admittedly, the OPs have sold the said shop to the said Mr. Vajaram Choudhary with corresponding right to the land by virtue of the sale deed dated 19/3/13. In our view, the said sale cannot come in the way of execution of similar sale deeds in favour of the complainants or other shop owners. In fact the complainant Mr. Martinho Noronha, in terms of his agreement, had a first preference to have a sale deed made in his favour to convey title of the flat to him and only in case the OPs could not give the title by way of sale deed then the OPs were to form a Co-operative housing society, and, as already stated no such society was formed within a period of one year, as stipulated, from the date the possession of the said flat was given to Complainant Shri. Martinho Noronha. Likewise, 13 the OP had represented to complainant Mrs. Dumelina John that in case a Co-operative Housing Society was not formed within a reasonable time the OPs would, at the request of the said complainant, execute a sale deeds in favour of the complainant. Admittedly, and as already stated, no Co-operative Housing Society is formed within reasonable time or till the filing of the complaint and has not been formed even today and as such complainant Mrs. Dumelina John was entitled to a sale deed made in her favour of her flat with proportionate undivided right to the land. If two of the complainants were entitled to a sale deed in their favour as a matter of first preference and a sale deed has been executed by the OPs in favour of Vajaram Choudhary, we see there is no reason why the OPs should not execute a sale deed in favour of all the complainants in this case. We accordingly allow the appeals filed by the complainants and modify the first part of the final order of the Lr. District Forum and direct the OPs to execute a sale deed in favour of the complainants with proportionate undivided right to the land of plot of Chalta No. 9 of P.T. sheet No. 59 of Margao City Survey.
25. We would take up next, the appeals filed by the OPs.
26. The Lr. District Forum has directed the shifting of the toilet to its original location. As regards this toilet, the complainant Mr. Martinho Noronha in his evidence has stated that sometime in the year 2005 the OPs all of her sudden shifted the position of the common toilet from the ground floor to the 1st floor stair case landing; and by shifting the said toilet the OPs have illegally converted the toilet into a shop; He also stated that on countless occasions he informed the OPs about the hardships caused to him, and to shift the common toilet to its original location as per the approved plans; According to him, this toilet, when the plans were shown to him existed on the ground floor and he was told that it 14 was meant for common use of the occupants of the ground floor shops; He has further stated that most of the time the said toilet emits foul objectionable odour and dirty water from the toilet sometimes oozes out and accumulates on the stair case and the sight of the said toilet, as one climbs the staircase is very irritating and is a source of nuisance.
27. Smt. Zita D'Souza, who gave evidence on behalf of the OPs, and who subsequently abandoned the continuation of cross examination, had this to say:
"It is true that the show cause notice dated 11/09/06 issued to me by the Margao Municipal Council in respect of construction of improper toilet of the first landing of the staircase. I also admit that thereafter on 16/10/06 a final notice was issued to me by the Margao Municipal Council for demolition of the illegal toilet which was constructed on the first landing of the stair case. It is true that after receipt of the final notice we have closed the toilet constructed by us on the landing of the existing stair case. Presently, there is no common toilet provided for this building for the shop owners."
28. The evidence of the complainant Noronha and that of the OPs, referred to hereinabove, clearly shows that the said toilet on the first landing of the stair case is not as per plans shown to the complainants at the time of booking the flats which they had booked on a clear representation made by the OPs that the flats booked by them would be in accordance with the plan annexed to the said agreement. The said toilet is both illegal and a source of nuisance to the complainants and therefore the Lr. District Forum could not be faulted in directing the shifting of the toilet to its original location. The said toilet on the first landing in any event has to be demolished whether it is closed or not as otherwise stated by the said Mrs. Zita D'Souza, and built at its original place. Constructing a toilet at a 15 different place, than shown on approved plan, which causes nuisance to the complainants has to be considered as deficiency in service, as well.
29. The Lr. District Forum has directed the OPs to provide parking space as per the report of Mr. Shridhar Kamat. Shri. Shridhar Kamat in his report dated 13/2/07, prepared almost seven years after the possession of the flats was given to the complainants, has stated that the requirement of the building for off-street parking is for 3 motor vehicles, for 4 motorcycles and 12 cycles and total area required for off-street parking is 55 sq.mts. and an additional area is also required for maneuvering the vehicles and as such a proper layout of parking arrangement should be submitted and got approved. However, Engr. Shri. Kamat has not made good his opinion with reference to the Building Regulations in force. On the contrary, a perusal of the original plan as well as the amalgamated plan shows that there is sufficient space on the western and southern sides of the complainants' building abutting a 6 mt. wide road and open spaces for parking of vehicles. Shri. Kamat has also not suggested whether a proper layout can now made after completion of both the buildings. Moreover, the OPs have obtained occupancy certificates for the complainants' building which would lead one to presume that necessary parking arrangements have been taken care of. The amalgamated plan shows that provision has been made for sufficient parking spaces. In the circumstances, therefore, the Lr. District Forum, in our view, was not right in giving a crypt direction that the OPs should provide parking spaces as shown on the report of Engr. Shri. Kamat. This direction needs to go and is hereby set aside.
30. The OPs have also been directed to carry out water proofing of the building so as to stop the leakage and seepage of the water and that too after almost fourteen years. We have seen that the OPs allotted to complainant Mrs. Dumelina John in addition to flat S-1, 16 18.18 sq.mts of open space on the second floor of the said building. We assume that this open space is on the terrace, and as stated by the OPs, the said complainant Smt. Dumelina John has converted the same into a room thereby violating the building plans and the entire façade of the building has been changed due to the additional room and that the building was not designed to bear this extra weight and because of that the building may suffer by way of cracks and differential settlement. It is also to be noted, that it is not the case of the complainants that they have done any maintenance works for the building from the year 2000 to 2007 to 2014. Every building requires to be maintained, painted, etc. In our view, considering that one of the complainants had carried out the said additional structure, for which the concerned authorities will take action, and considering that the building has not been maintained at all by the complainants, the directions to the OPs to carry out water proofing and to stop leakages and seepage after 14 long years also needs to go and is hereby set aside.
31. As regards compensation given to the complainants, in our view, the same appears to be excessive in that the complainants themselves remained silent for almost 6 years without calling upon the OPs to execute the sale deeds in their favour as per agreements or to form a society. We, are, therefore inclined to reduce the compensation to Rs. 25,000/- but not the costs, considering that the consumer complaints took almost 8 years to be decided.
32. In view of the above discussion, the appeals filed by the complainants succeed and the OPs are hereby directed to execute a sale deed in favour of the complainants in respect of the flats purchased by them together with corresponding proportionate undivided right to the land of Chalta No. 9 of P.T. Sheet No. 59 within a period of thirty days. The appeals filed by the OPs partly 17 succeed. The direction as regards the toilet is maintained. The directions as regards to parking spaces and repairs, etc. shall stand set aside. The direction to pay compensation is reduced to Rs. 25,000/- to each of the complainants and the direction to pay costs of Rs. 10,000/- to each of the complainants is maintained. Appeals/cross appeals shall accordingly stand disposed off. This order is to be complied within 30 days.
[Shri. JagdishPrabhudesai] [Shri. Justice N.A. Britto]
MEMBER PRESIDENT
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